P. v. Gleason
Filed 6/25/12 P. v. Gleason CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
>
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM THEADORE GLEASON, Defendant and Appellant. | B232800 (Los Angeles County Super. Ct. No. VA114918) |
APPEAL from
a judgment of the Superior Court of
Peter Paul Espinoza, Judge.
Affirmed.
Jerome
McGuire, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, David C. Cook and
Baine P. Kerr, Deputy Attorneys General, for Plaintiff and Respondent.
________________________________
William Theadore Gleason was convicted following a jury
trial of making a criminal threat and
misdemeanor battery on a cohabitant. On
appeal Gleason contends the trial court abused its discretion in denying his
motion to reduce the felony conviction for making a criminal threat to a
misdemeanor, failed to state reasons for denying probation and sentenced him in
violation of Penal Code section 654.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Information
Gleason was
charged by information with eight felony counts involving two victims, Luree
Thomas and Jinele McIntire. As to
Thomas, the information alleged Gleason had committed four felonies on February 11, 2010: assault
with a deadly weapon (§ 245, subd. (a)(1), count 1),
2), false imprisonment (§ 236, count 3) and
(b)(1), count 4). The information also
specially alleged Gleason had personally inflicted great bodily injury on
Thomas within the meaning of section 12022.7, subdivision (a).
As to
McIntire, the information alleged Gleason had inflicted corporal injury to a
cohabitant on three separate occasions (§ 273.5, subd. (a), counts 6, 7 and 8)
and also made a criminal threat (count 5) during one of the domestic violence
incidents.
Gleason pleaded not guilty and
denied the special allegation.
2.
Summary of Evidence Presented at
Trial
McIntire
met Gleason in June 2009 through his friend and coworker Thomas. Within a month McIntire and Gleason were
romantically involved, and McIntire moved into Gleason’s Lakewood
home. They had a volatile and physically
abusive relationship.
a. Count 8
– corporal injury to a cohabitant in late January 2010
In late January 2010 Gleason
attacked McIntire in their bedroom. He
yelled at McIntire, choked her with his forearm and placed a pillow over her
face as she was lying in bed. McIntire
lost consciousness for a time.
b. Count 7
– corporal injury to a cohabitant on February 16, 2010
While
driving home from Las Vegas on February 16, 2010, Gleason and
McIntire began arguing. Gleason punched
McIntire in the ear, causing it to bruise.
McIntire told Gleason to let her out of the car so she could find her
own way home. Gleason said he could just
pull over and bury McIntire in the desert, and no one would ever know.
c. Counts 5 and 6 – criminal
threat and corporal injury to a cohabitant on March 3, 2010
On
the evening of March 3, 2010
McIntire was cooking dinner when Gleason arrived home from work. After drinking two bottles of wine, Gleason
became upset over how McIntire was preparing the meal. McIntire wanted Gleason out of the kitchen,
so she walked to the bedroom, knowing he would follow her. Once in the bedroom, however, Gleason either
struck McIntire in the head or threw her onto the bed. Gleason then pressed his knee against her
chest, placed his forearm against her throat and began choking McIntire as she
was lying on her back. After Gleason
released McIntire and as she was walking back to the kitchen, he said to her,
“You better hope that you make it out of here alive tonight.â€
McIntire was frightened and
believed Gleason would carry out his threat.
As she continued to make Gleason’s dinner, he returned to the
kitchen. Gleason became angry when
McIntire poured him milk in a plastic cup, knowing he preferred a glass. Gleason began yelling at McIntire and poked
her four to eight times in her upper chest with a fork.
bedroom so she could return to the kitchen and plan her escape. McIntire boiled water, which she placed in
pans on the floor, and poured oil onto the floor to make it difficult for
Gleason to follow her. McIntire then
fled through a side door and sought help from neighbors, who telephoned the
police.
McIntire continued to live in
Gleason’s house following his arrest.
During that time McIntire spoke to Gleason on the telephone and visited
him in jail. McIntire used Gleason’s
checkbook to pay his bills. McIntire
later wrote an unauthorized check on Gleason’s account, signing his name, for
which she was granted immunity from prosecution. McIntire admitted to being “a methamphetamine
addict†and to having used the drug as part of her relationship with
Gleason. She acknowledged having used
methamphetamine within 30 days of her trial testimony.
d. Counts 1 through 4 – assault with a deadly weapon, making a criminal
threat, false imprisonment and dissuading a witness from reporting a crime
Thomas and
Gleason were friends and had worked together for 22 years.
On February 11, 2010 Thomas went to
Gleason’s house to retrieve a cell phone McIntire had borrowed. The prior night Thomas and Gleason had spoken
at length about how to find McIntire and persuade her to return to Gleason’s
home, which she had fled after one of their domestic
violence incidents. Gleason went to
the bedroom for the cell phone, while Thomas sat on a stool outside the kitchen
and waited.
When Gleason returned, he suddenly
punched Thomas in the face, knocking her to the floor. Gleason stood over her holding an amplifier
and threatened to kill her. Gleason then
dragged Thomas by her hair into the living room, choked her with his hands and
repeatedly struck her head with a ballast or metal box. Throughout the attack, Gleason cursed Thomas
and demanded she tell him where to find McIntire. Gleason then told Thomas, if she wanted to
leave his house alive, she would have to find out where McIntire was staying in
Las Vegas and drive him there. Gleason also threatened to kill Thomas if she
reported his attack to the police.
Gleason ultimately allowed Thomas to leave his home. Thomas later went to the hospital and was
treated for a black eye, bruises and a swollen forehead.
Thomas admitted she and Gleason
were involved in a financial dispute around the time of the attack. Gleason claimed Thomas had misappropriated
funds, which Thomas denied. Thomas also
acknowledged that she, Gleason and McIntire had used methamphetamine in the
past.
Gleason
neither testified nor presented other evidence in his defense.
Following
the presentation of evidence, defense counsel moved under section 17,
subdivision (b), to have the charged felonies involving McIntire as the victim
reduced to misdemeanors. The trial court
took the motion under submission pending the verdict.
3. Verdict
and Sentencing
The jury
convicted Gleason of making a criminal threat to McIntire on March 3, 2010, as charged in count 5,
and battery on McIntire as a cohabitant on March 3, 2010, a lesser included offense of corporal
injury to a cohabitant as charged in count 6.
The jury acquitted Gleason on all remaining counts.
Both orally
and in a sentencing memorandum defense
counsel urged the court to reduce the felony offense of making a criminal
threat to a misdemeanor pursuant to section 17, subdivision (b). Counsel also argued Gleason’s criminal threat
and battery offenses constituted a single, indivisible course of conduct and
the sentence for the two offenses was subject to section 654. The sentencing memorandum proposed imposition
of the lower term, 16-month sentence for the felony offense. At the hearing itself defense counsel urged
the court to impose the middle term of two years. Gleason’s counsel did not seek a grant of
probation.
The
prosecutor initially addressed the motion to reduce the felony conviction to a
misdemeanor. The trial court
interrupted, stating, “This is not a case in which I would exercise my
discretion under [section] 17, [subdivision] (b).†The prosecutor then argued section 654 did
not apply and the court should sentence Gleason to the three-year upper
term. When the court invited defense
counsel to respond, he declined, saying, “You have heard the evidence.â€
After
argument on the issue of presentence custody credits, the trial court sentenced
Gleason to the two-year middle term for making a criminal threat and a
concurrent term of one year for misdemeanor battery. Explaining its sentencing decision the court stated, “Most
important, it seems to me the things I know about this defendant is a fact that
I can’t take into consideration. I said
this at the time of his acquittal on the charges as to Ms. Thomas, had that
case been tried to me, I would have convicted him in a heartbeat. There is no other logical explanation for
what happened to her other than he beat the crap out of her, which required
medical attention. There is no doubt in
my mind that that is what occurred.
However, the jury acquitted him, and I am not allowed to take that fact
into consideration as a circumstance in aggravation. [Defense counsel] clearly points out that
that is the case. This is clearly not a
case for probation. The Defendant is
eligible for probation. I would never
grant him probation in this case. He is
clearly not someone, based on his history of drug use and his violence – well,
strike that. He is clearly not someone
who is worthy of consideration for probation.
However, the court is loathe to make the determination that there are
factors in mitigation and factors in aggravation that simply neither
preponderates, and the court is going to sentence the defendant to the mid term
in state prison of two years.â€
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion by Refusing To Reduce the
Felony Conviction for Making a Criminal Threat to a Misdemeanor
Section 17, subdivision (b), authorizes
the trial court to reduce to a misdemeanor an offense originally charged as a
felony if the charging statute—here, section 422, making a criminal
threat—provides alternative felony or misdemeanor punishment. (See People
v. Superior Court (Alvarez) (1997)
14 Cal.4th 968, 974 & fn. 4.) We
review the court’s decision under section 17, subdivision (b), for an abuse of
discretion. (Id. at pp. 979-980.)
In
exercising its discretion under section 17, subdivision (b), the trial court
must examine the nature and circumstances of the offense, the defendant’s
attitude toward the offense, the defendant’s behavior in court and the general
sentencing objectives of rule 4.410 of the California Rules of Court.
that his or her sentence was unreasonable, the trial court is presumed to have
acted to achieve legitimate sentencing objectives and its decision will not be
set aside. (People v. Superior Court (Alvarez),
supra, 14 Cal.4th at pp. 977-978.)
Gleason has
not met his burden of showing the trial court’s decision was irrational or
arbitrary. The court’s failure to
properly identify specific factors in its ruling denying the request to reduce
the felony conviction to a misdemeanor, standing alone, is insufficient to
demonstrate reversible error. (See
[trial court is presumed to have considered all relevant factors unless the
record affirmatively shows otherwise].)
The court had presided over the jury trial, observed Gleason’s attitude
and behavior, heard and considered arguments of counsel and reviewed the
probation report prior to sentencing. It
was entitled to rely on its assessment of those materials in exercising its
broad discretion. To the extent Gleason
simply repeats the contentions he made in his request before the trial court
(the circumstances underlying the conviction were not egregious; Gleason’s
criminal record was minimal; he was a productive member of society), we do not
reweigh those factors. (See
Gleason
argues the court’s comment that it disagreed with the verdicts on the counts
involving Thomas demonstrates it denied his request based on personal
animus. Gleason has forfeited any claim
of judicial bias by failing to make an appropriate objection in the trial
court. (See People v. Scott (1997) 15 Cal.4th 1188, 1207; People v. Hines (1997) 15 Cal.4th 997, 1040-1041.) In any event, the record does not support Gleason’s
claim. While the trial court expressed
its disagreement with those verdicts, the record clearly shows the court
maintained its impartiality; indeed it even advised counsel it would not allow
its belief Gleason was wrongly acquitted to influence its sentencing
decision.
2.
The Trial Court Did Not Abuse Its
Discretion in Denying Probation
a. Gleason
has forfeited his claim the trial court erred in failing to state its reasons
for not granting probation
Generally
the trial court must state its reasons for denying probation. (Rule 4.406(b)(2).) The trial court failed to do so. Nonetheless, because Gleason did not object
in the trial court, he has forfeited this contention on appeal. (People
v. Scott, supra, 9 Cal.4th 331, 335 [forfeiture rule applies to
“claims involving the trial court’s failure to properly make or articulate its
discretionary sentencing choices†including its failure “to state any reasons
or give a sufficient number of valid reasonsâ€]; see People v. Morales (2008) 168 Cal.App.4th 1075, 1084.) “Although the court is required to impose
sentence in a lawful manner, counsel is charged with understanding, advocating,
and clarifying permissible sentencing choices at the hearing. Routine defects in the court’s statement of
reasons are easily prevented and corrected if called to the court’s
attention. As in other waiver cases, we
hope to reduce the number of errors committed in the first instance and
preserve the judicial resources otherwise used to correct them.†(Scott,
Gleason
argues the forfeiture rule should not be applied because an objection would
have been futile. He contends, in light
of the court’s unequivocal rejection of probation and its refusal to reduce the
felony conviction to a misdemeanor, defense counsel reasonably understood the
court would not give serious consideration to a request for probation and, for
that reason, counsel instead urged the court to impose the lower term.
It is true
the forfeiture rule does not apply when the trial court fails “to give the
parties any meaningful opportunity to object.â€
(People v. Gonzalez (2003) 31
Cal.4th 745, 752.) Here, when the trial
court announced its decision to deny Gleason probation even though he was
eligible, it was incumbent upon defense counsel to seek clarification as to the
reasons for the denial of probation. The
opportunity to do so was there. This is
precisely the kind of readily correctible error the forfeiture rule is intended
to prevent.
b. Denial
of probation was not an
Gleason
also contends the trial court abused its discretion in refusing to order
probation. Our review of a trial court’s
decision to grant or deny probation is deferential. “The sentencing court has broad discretion to
determine whether an eligible defendant is suitable for probation
and, if so, under what conditions.†(People
v. Carbajal (1995) 10 Cal.4th 1114, 1120; see § 1170, subd. (b); rule
4.414.) “Probation
is generally reserved for convicted criminals whose conditional release into society
poses minimal risk to public safety and promotes rehabilitation.†(Carbajal, at p. 1120.) “[A] grant of probation
is not a matter of right but an act of clemency.†(People v. Covington (2000) 82
Cal.App.4th 1263, 1267.) “Unless the
record affirmatively shows otherwise, a trial court is deemed to have
considered all relevant criteria in deciding whether to grant or deny probation
or in making any other discretionary sentencing choice. (Rule 4.409.)†(People
v. Weaver (2007) 149 Cal.App.4th 1301, 1313.)
Prior to sentencing the trial court indicated it
had read and considered the probation report, the People’s sentencing
memorandum and the defense sentencing memorandum. According to the probation report, Gleason’s
criminal record consisted of a 1986 conviction for possession of a controlled
substance for which he was sentenced to county jail and placed on probation, a
1989 driving under the influence conviction for which he was placed on summary
probation, a 2007 misdemeanor vandalism conviction for which he was placed on
three years of probation and a 2008 misdemeanor conviction for obstructing an
officer in the performance of official duties for which he was sentenced to 90
days in jail and placed on three years of probation.
The People argued Gleason’s offenses and the
circumstances surrounding them were characterized by violence and the threat of
great bodily harm (rule 4.414(1)); Gleason used a weapon (fork) to inflict harm
in this case (rule 4.414(a)(2)); McIntire, a victim of domestic abuse, was
vulnerable (rule 4.414(a)(3)); Gleason inflicted
(rule 4.414 (4)); and Gleason’s criminal conduct was becoming increasingly
violent (rule 414(b)(1)).
Defense counsel argued Gleason was 56 years old,
had a job and owned a house. His
convictions for making a criminal threat and battery on a cohabitant were not
serious, given that both Gleason and McIntire had been drinking alcohol and her
injuries were minor. Counsel also
disputed that McIntire was vulnerable.
With respect to Gleason’s criminal history, counsel characterized it as
minimal, primarily misdemeanor convictions.
Counsel further argued Gleason’s single prior felony conviction was
remote; contrary to the probation report, Gleason had never been convicted of
driving under the influence; and he was not on probation at the time of the
current offenses.
The trial court’s decision to deny Gleason
probation was well within its broad discretion.
The court properly considered Gleason’s background, the arguments of
counsel and the trial record and decided against probation after balancing the
proffered factors in mitigation and aggravation. There was nothing arbitrary or capricious
about the decision.
3. Gleason’s
Sentence Does Not Violate Section 654
Section 654
prohibits separate punishment for multiple offenses arising from the same act
or from a series of acts constituting an indivisible course of criminal
conduct. (People v. Rodriguez (2009) 47 Cal.4th 501, 507;
1206.)
divisible and therefore gives rise to more than one act within the meaning of
section 654 depends on the intent and objective of the actor. If all the offenses were incident to one
objective, the defendant may be punished for any one of such offenses, but not
for more than one.’†(
519.)
Generally,
the trial court has broad discretion in determining whether a defendant had
multiple criminal objectives independent of, and not merely incidental to, each
other for purposes of section 654. On
appeal we will uphold the court’s express or implied finding a defendant held
multiple criminal objectives if it is supported by substantial evidence. (See People
v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Blake (1998) 68 Cal.App.4th 509, 512.)
Gleason
contends the trial court should have stayed imposition of sentence for
misdemeanor battery on a cohabitant because his “poking of McIntire with a fork
was part and parcel†of the criminal threat; his use of the fork demonstrated
to McIntire the seriousness of the threat.
Gleason’s
effort to conflate the two crimes lacks merit.
To be sure, Gleason engaged in an extended series of physically and
emotionally abusive acts on March 3, 2010.
Nonetheless, substantial evidence supports the implied finding his
conduct on that night was divisible, involving separate acts committed with
separate objectives: Gleason threatened
McIntire when she was leaving the couple’s bedroom after he had either punched
or hit her and then chocked her; only after both Gleason and McIntire had
returned to the kitchen did he stab her with the fork, apparently angered by her
failure to provide him with a glass rather than a cup. The battery was thus separated from the
criminal threat by time, location and triggering motive.
“To accept
. . . a broad, overriding intent and objective to preclude punishment for
otherwise clearly separate offenses would violate [section 654’s] purpose to
insure that a defendant’s punishment will be commensurate with his
culpability.†(People v. Perez (1979) 23 Cal.3d 545, 552.) “It is one thing to commit a criminal act in
order to accomplish another; [section 654] applies there. But that section cannot, and should not, be
stretched to cover gratuitous violence or other criminal acts far beyond those
reasonably necessary to accomplish the original offense.†(People
v. Nguyen (1988) 204 Cal.App.3d 181, 191.) “[A]t some point the means to achieve an
objective may become so extreme they can no longer be termed ‘incidental’ and
must be considered to express a different and more sinister goal than mere
successful commission of the original crime.†(Ibid.) That is the case here. The trial court did not err in refusing to
stay Gleason’s sentence for battery on a cohabitant under section 654.
DISPOSITION
The judgment affirmed. The superior court is directed to prepare a
corrected abstract of judgment to reflect Gleason was convicted by jury rather
than by plea and forward it to the Department
of Corrections and Rehabilitation.
PERLUSS,
P. J.
We concur:
ZELON,
J.
JACKSON,
J.
name="_ftn1" title="">[1] Statutory references are to the Penal Code.
The abstract of judgment
incorrectly states Gleason’s conviction was by plea. We order it corrected.
